Tuesday, May 27, 2014

Lawyers do an end run around the Supreme Court for the climate scam

The Supreme Court has done its best to kill a harmful theory that merges the worst instincts of the tort bar and green lobby, but the idea won't stay dead. The Justices now need to polish off this legal zombie for good.

For years environmentalists have sued utilities on the claim that their emissions are a "public nuisance" under common law and therefore the courts should make U.S. climate change policy. In 2011 an unusual 8-0 majority of Justices held in American Electric Power v. Connecticut that this question belongs to the political branches and the Court "remains mindful that it does not have creative power akin to that vested in Congress."

That case turned on federal common law, but class-action plaintiffs revived the nuisance doctrine under state common law—and for some reason the Third Circuit Court of Appeals accepted this nondistinction. In GenOn Power v. Bell, a group of homeowners argued the traditional air pollutants of a local Pennsylvania power plant damaged their property values, but if allowed to stand the decision could also apply to carbon dioxide.

The plant was permitted and in full compliance with all federal and state standards under the Clear Air Act, which Congress passed in the 1970s precisely to pre-empt such common-law pollution nuisance suits. The point was to establish one uniform, predictable regulatory regime, and—whatever its faults in practice—this system is preferable to ad hoc, case-by-case injunctions that substitute the judiciary's judgment for that of Congress and federal agencies.

Green torts copying the Bell argument have already proliferated within the Third Circuit, and the tort bar is bidding to import the same logic into the Fourth, Sixth, Seventh and Ninth Circuits as well. Failing to reverse the decision could expose U.S. industry to billion of dollars of liability and lead to a state-by-state chopped salad of pollution controls as judges make what are quintessentially political decisions. The Bell defendants are asking the Supreme Court to take the case, and the Justices should take the opportunity to close the state common-law loophole before more damage is done.